Court claim from HSBC

[falcokeith]

I have a court claim for a 1996 HSBC credit card
I have sent in defence along with a CPR31.14 request for CCA
HSBC had already confirmed they did not hold a CCA for this account (Twice in writing in 2013)
They have now sent a reconstituted CCA (Application form from the 1990's and separate terms and conditions) and requested to proceed to small claims track at my local County Court
I have sent them a CPR18 request for CCA which I feel sure they will ignore
I have sent an N244 asking for case to be stayed unless they can provide CCA

I have spent more hours than I care to think about researching and reading and everything I find suggests that this should not be going to court but here I am

Would anyone here have any ideas that could possibly help me out with this?

[PAWS]

Re: Court claim from HSBC

Just giving this a bump and hopefully someone with the right smarts will be along soon to offer advice.:bump2:

[FlamingParrot]

Re: Court claim from HSBC

I have a court claim for a 1996 HSBC credit card
I have sent in defence along with a CPR31.14 request for CCA
HSBC had already confirmed they did not hold a CCA for this account (Twice in writing in 2013)
They have now sent a reconstituted CCA (Application form from the 1990's and separate terms and conditions)

Are those the original T&Cs from the time you took out the card or just any random terms?

I know it's been nearly 20 years but the main issue here is whether the T&Cs were present at the time you applied for the card. In many cases they may not have been. It would be an idea if you could remove your personal details and post up what you have received. :typing:

What did you use as your defence?

and requested to proceed to small claims track at my local County Court
I have sent them a CPR18 request for CCA which I feel sure they will ignore
I have sent an N244 asking for case to be stayed unless they can provide CCA

Parts 18 and 31 of the CPR do not apply to small claims track. You can use them to send requests at the pre-allocation stage, however, once the claim has been allocated, they no longer apply.

With regards to the CCA, on Carey v HSBC it was established that a recon was an acceptable response to a CCA request, however, that only relates to compliance with s.78 of the CCA. The recon may or may not be enforceable depending on whether it shows all the prescribed terms were there at the time you took out the account.

I have spent more hours than I care to think about researching and reading and everything I find suggests that this should not be going to court but here I am

Would anyone here have any ideas that could possibly help me out with this?

Trying to establish whether those were the applicable terms, I find it a bit hard to believe they would have found the terms from inception from as far back as 96 when they'd already said the agreement could not be found. It may be they are trying to fob you off with a random set of terms.

[falcokeith]

Re: Court claim from HSBC

Hi,

From memory there were no terms and conditions at application, it was just a folding application that was posted back to Midland and on the back of that the card was issued. The T&C they sent me is dated 1996.

My defence was based on repeated requests for CCA inc CPR 31.14 and there written comment that not having a CCA they could not enforce debt through the courts.

Copy of re constituted agreement attached

[FlamingParrot]

Re: Court claim from HSBC

Hi,

From memory there were no terms and conditions at application, it was just a folding application that was posted back to Midland and on the back of that the card was issued. The T&C they sent me is dated 1996.

That was very often the case, the terms were sent later on with the card. If no terms were present at the time you applied for it, that would make the account irredeemably unenforceable. There was a case around 10 days ago when a judge ruled that way against MKDP for a similar reason. :juge:

Even if the terms are dated 1996, if they were sent with the card rather than being on the actual application, the account would be unenforceable.
If the claim progresses, you will be able to state as much on your witness statement. :thumb:

[nemesis45]

Re: Court claim from HSBC

This usually is supplied as a " booklet" and is referred to in the application as being a copy for you to keep, if not included in a recon agreement the recon fails.

[falcokeith]

Re: Court claim from HSBC

Does the application/agreement have everything necessary to make it enforceable?

[FlamingParrot]

Re: Court claim from HSBC

Does the application/agreement have everything necessary to make it enforceable?

No, if the application was just a booklet and the terms were sent out later on with the card, it would NOT be enforceable.
Section 61(1) of the Consumer Credit Act 1974 defines what constitutes a properly executed agreement:

61 Signing of agreement.

(1) A regulated agreement is not properly executed unless—
(a) a document in the prescribed form itself containing all the prescribed terms and conforming to regulations under section 60(1) is signed in the prescribed manner both by the debtor or hirer and by or on behalf of the creditor or owner, and
(b) the document embodies all the terms of the agreement, other than implied terms, and
(c) the document is, when presented or sent to the debtor or hirer for signature, in such a state that all its terms are readily legible.

Section 65 of the Consumer Credit Act states that an improperly executed agreement can only be enforced by a court:

5 Consequences of improper execution.

(1) An improperly-executed regulated agreement is enforceable against the debtor or hirer on an order of the court only.

However, Section 127 of the CCA limits the court's powers to enforce an improperly executed agreement.

(3) The court shall not make an enforcement order under section 65(1) if section 61(1)(a) (signing of agreements) was not complied with unless a document (whether or not in the prescribed form and complying with regulations under section 60(1)) itself containing all the prescribed terms of the agreement was signed by the debtor or hirer (whether or not in the prescribed manner).

The above section was repealed with effect from April 2007, however, if you took out the card before that time s.127 still prevents the court from enforcing. :thumb: :thumb: :thumb:

[falcokeith]

Re: Court claim from HSBC

Thank you, gives me some confidence back

[falcokeith]

Re: Court claim from HSBC

It would be good if someone could look at the application and confirm if it is or is not properly executed
Being nearly 20 years ago I don't think I can rely on saying T&C's were sent later as a complete defence

[FlamingParrot]

Re: Court claim from HSBC

It would be good if someone could look at the application and confirm if it is or is not properly executed
Being nearly 20 years ago I don't think I can rely on saying T&C's were sent later as a complete defence

I have looked at the file you posted above and it's just an application form. Just the one page. If that's all there is, that is certainly not a properly executed agreement, for a start there isn't a single term on it.